State laws typically contain provisions with which guardians must comply in order to comply with statutory expectations to keep a guardianship current and to properly inform the court of the actions of the guardian. State statutes often do not provide guardians guidance about ethical decision-making principles and standards to ensure the guardian is engaged in ethical decision-making. Some states have adopted state-specific ethics and standards for professional and/or family guardians (state statutes, judicial orders, and administrative rules should be consulted in each jurisdiction).
The National Guardianship Association (NGA) has approved ten ethical principles
that apply to all decisions made by a guardian. NGA has also adopted Standards of Practice
for personal, medical, and financial decision-making by guardians. The NGA has worked with many jurisdictions to facilitate the adoption of state-specific ethics and standards for guardians.
When the courts appoint a guardian, the following rights of the person under guardianship may be removed. These rights may include the right to:
• Determine residence.
• Consent to medical treatment.
• Make end-of-life decisions.
• Possess a driver’s license.
• Manage, buy, or sell property.
• Own or possess a firearm or weapon.
• Contract or file lawsuits.
Because establishing guardianship is a legal process that involves the removal of the individual’s rights, considerable due process protection often exists when the guardianship is established. The rights of the protected person include:
• Notice of all proceedings.
• Representation by counsel.
• Attendance at all hearings/court proceedings.
• Ability to compel, confront and cross examine all witnesses.
• The right to present evidence.
• Appeal to the determination of the court.
• Presentation of a clear and convincing standard of proof.
• The right to a jury trial.
Individual rights removed and due process rights may vary from state to state, the final authority is the state statues where the person with the incapacity lives. In any type of guardianship the court may limit the guardian’s authority. The guiding principle in all guardianship is that of least intrusive measures to assure as much autonomy as possible. The guardian’s authority is defined by the court and the guardian may not operate outside that authority. A guardian may be a family member or friend or a public or private entity appointed by the court.
GUARDIANSHIP OF THE PERSON
When the court appoints a guardian of the person, the guardian may have the following responsibilities:
• Determine and monitor residence.
• Consent to and monitor medical treatment.
• Consent and monitor non-medical services such as education and counseling.
• Consent and release of confidential information.
• Make end-of-life decisions.
• Act as representative payee.
• Maximize independence in least restrictive manner.
• Report to the court about the guardianship status at least annually.
Guardianship of the Estate or Property
“Estate” is defined as real and personal property, tangible and intangible, and includes anything that may be the subject of ownership.
GUARDIAN OF THE ESTATE
When the court appoints a guardian of the estate, the guardian is assigned the following responsibilities:
• Marshall and protect assets.
• Obtain appraisals of property.
• Protect property and assets from loss.
• Receive income for the estate.
• Make appropriate disbursements.
• Obtain court approval prior to selling any asset.
• Report to the court or estate status.